99 Ala. 148
Ala.
1892
COLEMAN, J.

The defendant was tried and convicted of murder in the second degree. The first exception is to the action of the court in excusing the juror Cowart, who had been drawn and summoned on the special venire. When his name was called, he stated to the court, that he was a member of the police of the city of Troy, and on active duty, and asked to be excused from service as a juror. The court excused him, and the defendant excepted. Section 4335 of the Criminal Code is as follows: “The court may excuse from service any person summoned as a juror, if he is disqualified, or exempt, or for any other reasonable or proper cause, to be determined by the court.” We are of opinion that the excuse given by the juror Cowart, that he was a policeman of the city of Troy on active duty, was a “reasonable or proper cause” within the meaning of the statute. His duties as a policeman could not be attended to while serving as a juror. The case comes within the rule declared in Fariss v. State, 85 Ala. 1, and Maxwell v. State, 89 Ala. 150.

*151In the ease of Phillips v. The State, 68 Ala. 469, the juror claimed to be exempt from jury duty under the provisions of a special statute, and the trial court so held. This court held that the facts did not show he belonged to the class exempted by the statute. Section 4335 of the Code was not considered in that case, and the juror was not excused under its provisions.

The second exception is to the giving charge No. 2 for the prosecution. The objection to this charge is, that the jury were instructed, “if they believe from the evidence that the defendant was acting m concert with Will Jackson,” &c. The precise objection is, that the degree of proof required by the charge is too low. Being a criminal trial, the law requires that the proof must satisfy the jury “beyond a reasonable doubt,” to authorize a conviction. The proposition is certainly correct. A jury should not convict, unless they are satisfied from the evidence beyond a reasonable doubt of the defendant’s guilt. Section 2756 of the Code declares that, “Charges moved for by either party, . . must be given or refused in the terms in which they are written, ■ • • and may be taken by the jury with them on retirement.” Certainly, the charge as given is not the law. It does not apj^ear any where in the record that the court instructed the jury as to the measure of proof required in criminal cases to authorize a conviction. In the charge given, they are instructed “that, if they believe from the evidence,” that is sufficient. The jury had this charge “with them on their retirement.” The jury are bound by the instruction of the court. They may have believed the facts predicated in the charge, and yet have not been satisfied of their truth beyond a reasonable doubt.

There is no presumption of error without injury in a criminal case in this State. We are aware that it has been held differently in other courts, and that the giving of such a charge merely calls for an explanatory charge, to the effect that “to believe from the evidence” requires the jury “to be satisfied beyond a reasonable doubt.”—People v. Sheldon, 68 Cal. 484, 438. We can not consent to the doctrine. If a court should charge a jury, in a civil case, that they must be satisfied beyond a reasonable doubt of any fact in dispute, this court would not hesitate to reverse; and we can not see why, “if to believe the evidence” is not error, and merely calls for an explanatory charge, “to believe beyond a reasonable doubt,” in a civil case, should be error, and notheld to be a mere statement of law which calls for an explanatory charge. Furthermore, we regard the rule as to giving ex*152planatory charges applies only when the charge given asserts a correct proposition of law, but from its phraseology, or some other cause, is calculated to mislead the jury ; but we can not sanction the application of the rule in cases where the charge given asserts absolutely an incorrect proposition of law. Under this doctrine, every erroneous chai’ge given must be held to be cured by subsequently giving a correct charge. What isa jury to do, with two charges given for their guidance, which assert two propositions of law, the one instructing a conviction if they “believe the evidence,” the other instructing them not to convict unless “they are satisfied beyond a reasonable doubt.” We hold the court erred in giving the charge.

We are aware that, in some cases in our own courts, where the facts were not disputed, and the only question was whether, as a matter of law upon the undisputed facts, the defendant was guilty, the general charge was given to convict if the jury “believed the evidence,” and no exeeptioxx was taken to the charge on this account. Green v. State, 97 Ala. 59.

The law of conspiracy, as applicable to the facts of this case, has been so fully and clearly stated in the cases of Martin v. The State, 89 Ala. 115, and Tanner v. The State, 92 Ala. 1, we content ourselves with oxxe extract from each case. In the first it is said, on page 119: “Conspix’acy, or a common purpose to do an unlawful act, need not be shown by positive testimony. Nor need it be shown that there was pre-arrangement to do the specific wrong complained of. When two or more persons enter upon an unlawful enterprise, with a common purpose to aid, assist, advise, encourage each other in whatever may grow out of the enterprise upon which they enter, each is responsible, civilly and criminally, for everything which may consequently and proximately result from such unlawful purpose, whether specifically contemplated or not, and whether actually perpetrated by all or less than all of the conspirators. And it is not necessary to this equal accountability that positive proof be made of the unlawful common purpose with which the enterprise was entered upon. It may be inferred from the conduct of the participants. ‘All those who assemble themselves together, with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime, .... And where persons combine to stand by one another in a breach of the *153peace, with, a general resolution to resist to the death all opposers, and in the execution of their design murder is committed, all of the company are equally principals in the murder.’—1 Whar. Cr. Law, § 220. ‘It should be observed, however, that while the parties are responsible for consequent acts growing out of the general design, they are not for independent acts growing out of the particular malice of. individuals.’—Ib., § 397. And this is the general doctrine on the subject.—Smith v. State, 52 Ala. 407; Jordan v. State, 79 Ala. 9; Williams v. State, 81 Ala. 1; Amos v. State 83 Ala. J; 1 Bish. Cr. Law, § 649.” And in Tanner's Case, it is said, on page 6: “And this criminal accountability extends, not alone to the enterprise, adventure, or encounter in which the conspirators are engaged, but it takes in the proximate, natural, and logical consequences of acts intentionally done ; and one who is' present, encouraging or ready to aid another in such conditions, must be presumed to be cognizant of that other’s intention, to the extent above expressed. If such conspiracy, or community of purpose, embrace the contingency that a deadly encounter may ensue, with the common intention, express or implied, to encourage, aid, or assist, even to the taking of life, should the exigencies of the encounter lead up to that result; then, as a general rule, the act of one becomes the act of all, and the one who encourages, or stands ready to assist, is alike guilty with the one who perpetrates the violence. And such community of purpose, or conspiracy, need not be proved by positive testimony. It rarely is proved. The jury are to determine whether it exists, and the extent of it, from the conduct of the parties, and all the testimony in the cause.—Williams v. State, 81 Ala. 4; Martin v. State, 89 Ala. 115; Gibson v. State, Ib. 121.” Keeping these principles in view, the trial court will have but little difficulty in forming its own charge, and in determining the correctness of charges requested by either side.

We do not think the court erred in not charging the jury of its own motion as to the constituents of manslaughter. Under the facts as disclosed in the record,' the defendant was guilty of murder, or of no offense for which he could be convicted under this indictment. We do not know that the evidence will be the same on another trial, and we state that it is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.

There was evidence tending to show a preconcert, a com*154munity of purpose, on the part of "Will Jackson and the defendant, to take the life of deceased, and that defendant was present, aiding, encouraging or abetting Will Jacksou, and that defendant himself entertained malice, and had the intent to take life. But it was for the jury to say what credit should be given to his evidence.

Under the facts of the case as disclosed in the record, the law is, that if Jackson entertained malice towards deceased, and had the intent to kill him, unless the defendant also on his part entertained malice, or unless he knew that Jackson entertained such malice and intent, and with knowledge or notice of such malice and intent aided, encouraged or abetted him, the defendant, ought not to be convicted of murder. Tanner’s Case., supra; Jordan v. State, 79 Ala. 9. There was evidence tending to show these conditions existed, but it was a question for the jury to say what weight should be given to this evidence. The charges requested by the defendant, which referred these questions to the jury, should have been given. We need not specify the charges, and it would not be proper to particularize the facts.

Nothing we have said contravenes or limits the rule which holds an accomplice responsible “for acts which are the direct, proximate, natural result of the common purpose or conspiracy;” but our purpose is to emphasize the fact, that the jury should say from all the evidence whether a particular act was within the scope of tlie common purpose, or grew out of the individual malice of the perpetrator.— Tanner v. State, supra.

What we have said will suffice on another trial.

Reversed and remanded.